RAKESH KUMAR VATS Vs. VINOD KUMAR CHAHEL

JUDGEMENT

(1.) Counsel for the respondent was awaited as he did not appear in the first call. Even on the second call, and now it is 12.00 noon, no one appears for the respondent.

(2.) There is a limited issue involved in this case of the claim of the appellant/plaintiff/buyer for refund of the amount of Rs.3 lacs paid to the respondent/defendant/seller under the subject Agreement to Sell dated 28.9.2011. The law with respect to forfeiture of an amount paid by a buyer to a seller under the Agreement to Sell is well settled. The main judgment is of the Constitution Bench of the Supreme Court in the case of Fateh Chand Vs. Balkishan Dass, 1963 AIR(SC) 1405 and which holds that unless and until loss is pleaded and proved to have been caused to the seller, amount received by the seller from the buyer cannot be forfeited except a nominal amount.

(3.) I have recently considered this aspect in the judgment in the case of M.C. Luthra Vs. Ashok Kumar Khanna, 2018 248 DLT 161. In the case of M.C. Luthra I have distinguished the judgment of the Supreme Court in the case of Satish Batra Vs. Sudhir Rawal, 2013 1 SCC 345 and have applied the ratio of the larger Constitution Bench judgment in the case of Fateh Chand and as explained in the later judgment in the case of Kailash Nath Associates Vs. Delhi Development Authority and Another, 2015 4 SCC 136. I may note that an SLP was filed in the Supreme Court against the judgment of this Court in the case of M.C. Luthra and this SLP(C) No.11702/2018 was dismissed by the Supreme Court on 15.5.2018. The relevant paras of the judgment in the case of M.C. Luthra are paras 3 to 17 and these paras read as under:- IN WITNESS WHEREOF BOTH THE PARTIES HAVE PUT THEIR RESPECTIVE HS ON THIS AGREEMENT IN PRESENCE OF THE FOLLOWING WITNESSES:- :